India’s IPR regime is robust - almost

Commerce minister Nirmala Sitharaman is broadly right when she says that the country’s intellectual property regime is fully formed and compliant with global norms.ET Bureau | Updated: May 19, 2016, 12:06 IST

Commerce minister Nirmala Sitharaman is broadly right when she says that the country’s intellectual property regime is fully formed and compliant with global norms. However, some caveats apply.

Section 3(d) of the Indian patents law is wildly disliked by global pharma giants, even if its refusal to distinguish between different forms of the same molecule for the purpose patents unless the different forms have demonstrably different therapeutic efficacy is conceptually sound and compliant with the World Trade Organisation’s Trade-Related Intellectual Property Rights Agreement.

India needs to evangelise its merits among other countries to garner support against rich-country resistance to it.

A second caveat is about the working of the compulsory licensing regime. Yes, India must retain the right to issue compulsory licences when confronted with a healthcare emergency as assessed by Indian authorities. But a compulsory licence should not be the first resort.

An effort must first be made to arrive at a negotiated price for high-value but critical drugs, such as for cancer, on the strength of a bulk purchase agreement arrived at in coordination with hospitals and insurance companies. The next step should be price control.

Only when the price-controlled drug ceases to be available should compulsory licensing kick in. Nor can the country defend the view that import of a drug does not amount to working of a patent. Insufficient import might fall short of working a patent, but not import, per se.

Then again, India’s courts take far too long to settle patent disputes, incentivising Indian companies to knock off patented drugs and reap commercial gains till the courts stop them.

A final caveat is that merely having a good IPR regime will not produce innovation and creativity. That calls for many things, including a spirit of free inquiry untrammelled by intolerance of dissent or fear of hurting prickly sensibilities. It calls for universities with a vibrant intellectual life and functional autonomy. Could it be India is a wee bit deficient on this count, these days?

This piece appeared as an editorial opinion in the print edition of The Economic Times.